2020 (9) TMI 21

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....2009. 4. That the revenue has not appreciated that the assessee cooperated and surrendered Rs. 35 lacs in survey dated 21.01.2009 when it was the first year of business and no benefit of surrender was allowed to the appellant. 5. That the Ld. CIT(A) has not allowed depreciation on the Hotel Building valued at Rs. 76,02,895/-, nor he has given any finding on disallowance of depreciation, on a specific ground taken before him. 6. That the order is bad in law as well as on facts. The order may kindly be set aside modified or any other relief be allowed. 2. Brief facts of the case are that the assessee was engaged in Hotel and Restaurant business and filed his return of income on 22.09.2009. A survey u/s.133A(1) of the Act was conducted at the business premises of the assessee, Hotel Shagun, Barnala By-pass on 21.01.2009 and during the course of survey Rs. 960/- was found in cash and the assessee had offered to tax an amount of Rs. 35,00,000/- as its undisclosed income for the assessment year 2009-2010 subject to no penal action under the I.T.Act, 1961. The assessee also admitted the undisclosed investment of Rs. 35 lakhs in the hotel Shagun. Thereafter th....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....stantiate the objections raised by the AO. Therefore, the order of the CIT(A) should be restored. 8. After hearing both the sides and perusing the entire material available on record and the order of authorities below and paper books filed by the assessee, we noted from the impounded paper obtained during the course of survey proceedings, it is clear that some of the expenditure which are not related to the impugned assessment year and this objection was also taken before the CIT(A) but the CIT(A) has not properly dealt this matter while deciding the appeal of the assessee. Therefore, as per our considered opinion, this matter should go back to the file of AO for further verification regarding the addition made on the hotel building. The AO is also directed to give telescoping from the surrendered if the assessee has paid taxes on the entire surrendered amount. If it is found otherwise, then the AO is directed to consider the amount on which the assessee has paid taxes thereon. The AO is also directed to grant depreciation if the assessee is eligible as per the Income Tax Act on the hotel building and if the depreciation was not claimed while calculating the taxable income of th....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ibunal. In the meanwhile (emphasis, by underlining, supplied by us now),all the revisional and appellate authorities under the Income-tax Act are directed to decide matters heard by them within a period of three months from the date case is closed for judgment". In the rules so framed, as a result of these directions, the expression "ordinarily" has been inserted in the requirement to pronounce the order within a period of 90days. The question then arises whether the passing of this order, beyond ninety days, was necessitated by any "extraordinary" circumstances. 10. We also find that the aforesaid issue has been answered by a coordinate Bench of the Tribunal viz; ITAT, Mumbai 'F' Bench in DCIT, Central Circle-3(2), Mumbai vs JSW Limited & ors (ITA No.6264/Mum/18 dated 14.5.2020, wherein, it was observed as under: " 9. Let us in this light revert to the prevailing situation in the country. On 24th March,2020, Hon'ble Prime Minister of India took the bold step of imposing a nationwide lockdown, for 21 days, to prevent the spread of Covid 19 epidemic, and this lockdown was extended from time to time. As a matter of fact, even before this formal nation....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ht of the discussions above, the period during which lockdown was in force can be anything but an "ordinary" period. 10. In the light of the above discussions, we are of the considered view that rather than taking a pedantic view of the rule requiring pronouncement of orders within 90 days, disregarding the important fact that the entire country was in lockdown, we should compute the period of 90 days by excluding at least the period during which the lockdown was in force. We must factor ground realities in mind while interpreting the time limit for the pronouncement of the order. Law is not brooding omnipotence in the sky. It is a pragmatic tool of the social order. The tenets of law being enacted on the basis of pragmatism, and that is how the law is required to interpreted. The interpretation so assigned by us is not only inconsonance with the letter and spirit of rule 34(5) but is also a pragmatic approach at a time when a disaster, notified under the Disaster Management Act 2005, is causing unprecedented disruption in the functioning of our justice delivery system. Undoubtedly, in the case of Otters Club Vs DIT [(2017) 392 ITR 244 (Bom)], Hon'ble Bombay High Court did....